LAW AND SOCIETY Religion in the balance in Australia

by Michael Quinlan

News Weekly, June 3, 2017

Once the overt sectarian conflicts between Catholics and Protestants largely petered out in Australia in the 1970s, we looked to be headed towards an Australia that was a model of religious tolerance. But in recent times the social stability engendered by religious tolerance is again imperilled as the law increasingly conflicts with religion and conscience in Australia.

So, what is happening and why?

Religious freedom weighed against what?

Australia has deep historical Christian roots and a substantial majority of Australians continue to identify with Christian religious traditions. While that majority has declined (from 96 per cent in 1911 to 61 per cent in 2011) and we are yet to see the results of the 2016 census, the Christian faith traditions continue to be dominant in Australia.

Those who act as though Australia is “post Christian” may be engaging in some wishful thinking.

Religious diversity in Australia is, however, certainly on the rise. As Australia welcomes about 190,000 migrants each year and that there are, of course, no religious tests for immigrants, the attitudes of a not insubstantial percentage of the population cannot be predicted and change each year. The fact that there are higher birth rates within some minority religions has also been part of the growth of adherents of non-Christian faith traditions in Australia. Moreover, while the vast majority of Australians identify with a religious tradition, the numbers who select “No Religion” in the census has also been increasing.

A visitor to Australia would see many outward signs suggesting a strong respect for religious freedom: government funding for religious schools, two Catholic universities, churches and other places of worship prominent in cities, suburbs and towns, and many hospitals, charities, retirement homes, clubs and other institutions operated by religious organisations which are an everyday feature of Australian life. Religious people do not face threats to their life and property as they do in many other places in the world.

Yet outward appearances can prove deceptive and the views of those of religious faith are subject to regular attack. Australia is characterised by a general apathy and ignorance of basic religious concepts and principles and an antipathy towards many traditional Western and Christian values. The popular media is often openly antagonistic to Christianity and traditional moral principles. There is an ever-diminishing emphasis in teaching about religion and on equipping people to make sound moral choices.

While Australians are free to worship at home and in their churches, without fear for their physical safety, this is not all that religious freedom entails. Christians, for example, have a moral duty not only to live morally but to evangelise and to act. If this was more widely understood perhaps we would hear fewer concerns expressed, particularly in the media, whenever Christians speak on moral matters – perhaps.

These concerns come from an approach to morality focused on individual freedom, individual rights, equality, discrimination, scientism, subjectivism, pragmatism and relativism. References to absolute moral truths are anathema to this approach to morality. Even utilitarianism can be swamped by appeals to rights. For example, the very successful pro-choice lobby concentrate on the right to choose but ignore entirely any right of any unborn child to be born alive.

The Abortion Law Reform (Miscellaneous Acts Amendment) Bill, 2016, introduced into the NSW Parliament in August 2016 by Dr Mehreen Faruqi, MLC (the Faruqi Bill) is a clear example of this approach. If passed, abortion would just disappear from the Crimes Act, (1900) (NSW) and any and all abortions at any stage of gestation would be legal in NSW. It would also make protesting about that fact near an abortion clinic illegal.

A traditional Australian characteristic is the willingness to speak up when something is wrong and to “tell it like it is”. That characteristic is no longer welcome in Australian society. A form of creeping conformity – whether it is in business, the media or in a social setting – is at work. It is really quite unacceptable to promote or justify a position on any issue by reference to traditional or religious principles.

At the same time, there are well-organised and focused special interest groups that are very skilled in their use of the media and in lobbying politicians. They promote the recognition of new rights and the restrictions on existing rights through legislation and developments in the Common Law.

Tenuous protection

The legal protection of religious freedom is tenuous in Australia. We have no Commonwealth Religious Discrimination Act. Religious freedom is frequently curtailed without any fuss or fanfare. If there is a clash between the right to religious freedom and other (often newly identified) rights, only rarely does the right to religious freedom survive. If this trend is not recognised and staunched, the gradual, almost imperceptible, erosion of religious freedom will inevitably continue until it is but a distant memory.

As a pluralist, multi-faith and multicultural society, there are a wide range of views on moral topics such as abortion in Australia. Those views are not reflected in the law. Over the last few decades most states and territories have liberalised access to or decriminalised abortion. Victoria and the Northern Territory require medical practitioners with a conscientious objection to abortion to refer patients seeking that procedure to another medical practitioner who does not share that objection. The situation is similar in NSW where a policy requires health professionals to direct patients to a practitioner with no conscientious objection. The Faruqi Bill aims to legislate a referral obligation in NSW.

These laws and policies compel health professionals with a conscientious objection to abortion to be complicit in that procedure. A pro-life doctor, Dr Mark Hobart, was the subject of disciplinary proceedings in Victoria for refusing to provide a referral to a couple seeking an abortion on sex-selection grounds. Tasmania, the ACT and Victoria have established exclusion zones around abortion clinics. These prevent a range of activities, including peaceful protests. The Faruqi Bill seeks to introduce such zones in NSW. In this way, conversations, prayers, providing leaflets or holding a sign are criminalised.

In Tasmania, religious faith motivated three elderly Christians to hand out leaflets and hold a sign within the exclusion zone outside a Hobart clinic last year. While the case is on appeal, neither the implied freedom of political communication nor the religious freedom protections in the Tasmanian Constitution prevented a guilty finding. In this way well-intentioned law-abiding Christians trying to live their faith become criminals.

In 2014 a Victorian company, owned and operated by the Christian Brethren, politely declined a booking by a group promoting moral views to young people that were contrary to those of that faith. According to the Victorian Court of Appeal, that was unlawful discrimination. Complaints have been made to employers whose employees are involved with Christian bodies such as the Australian Christian Lobby and the Lachlan Macquarie Institute.

Discussions about the desirability of amending the definition of marriage in the Marriage Act, 1961 (Commonwealth) have also led to a number of issues, including:

The now discontinued allegation of a breach of the Tasmanian Anti-Discrimination Act by Archbishop Julian Porteous in circulating a booklet called “Don’t Mess with Marriage” to the parents of students at Catholic Schools.

The cancellation of a meeting of those in favour of retaining the current meaning of marriage following a campaign against the venue and its employees.

A boycott campaign against Coopers Brewery following the airing of a respectful conversation between two politicians about marriage over a Coopers beer.

It is unclear whether the Marriage Act, 1961 (Commonwealth) will be amended, but there is strong opposition to anything more than the barest religious freedom protections for churches and religious celebrants being retained if it is. Without specific protections, existing anti-discrimination legislation will give rise to issues similar to those seen overseas. Christian state employees, service providers (florists, cake makers and photographers) and property owners have been prosecuted for unlawful discrimination where they felt unable to supply services to same-sex weddings in the belief that doing so would be contrary to their faith and to God.

This approach to religion assumes that certain aspects of a person are to be given state sanction in excess of religious faith. This approach assumes that, unlike some other characteristics, religious belief is simply a matter of upbringing or choice. Psychologist Justin Barrett, neuroscientist Andrew Newberg and others would disagree.

But whatever the correct scientific position be, the assumption that religious belief is somehow of lesser value and more easily altered ought to be subjected to more critical review. Many see religious belief as so integral that they can only flourish when they are freely able to worship and live their faith.

Religious freedom has been of great benefit to Australia. It has brought religious minorities to our shores and encouraged religious groups to establish hospitals, aged-care facilities, schools, universities and charities. It has also encouraged day-to-day acts of charity and service and brought meaning, purpose and (according to empirical evidence) better health and longevity to millions of believers.

Contrary to its portrayal in the media, religion remains an important element in the lives of many Australians, it continues to make a major contribution to Australian society and religious tolerance is an important element of Australia’s social stability.

But religion is at a crossroads in this country. Certainly, if Christianity is to survive as a force, let alone to flourish again, those who care must act, and act soon; otherwise, Australia really will become, if not a post-God nation, a post-Christian nation, and the nation will be poorer for that.

Professor Michael Quinlan is Dean of the School of Law, Sydney, at the University of Notre Dame Australia. This article is an abridged version of the paper “Religion, law and social stability in Australia” which Professor Quinlan presented at the Brigham Young University International Center for Law and religion Studies 22nd Annual International Law and Religion Symposium.